Citation NR: 9714442
Decision Date: 04/28/97 Archive Date: 05/06/97
DOCKET NO. 95-21 030 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Wilmington, Delaware
THE ISSUES
1. Entitlement to an increased rating for the service-
connected residuals of penile cancer, currently evaluated as
30 percent disabling.
2. Entitlement to an increased rating for the service-
connected right femoral nerve injury residuals with thigh
weakness, currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
M. E. Larkin, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1963 to June
1984.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from an April 1995 rating action of the RO.
In a subsequent rating decision, the RO denied the veteran’s
claim for special monthly compensation based on loss of use
of a creative organ; however, that issue is not before the
Board at this time.
(The issue of increased rating for the service-connected
right femoral nerve injury residuals with thigh weakness is
the subject of the Remand portion of this document.)
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his condition is more severe than
the current rating indicates.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence of record is
against the claim for increase for the residuals of penile
cancer.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran has undergone the surgical removal of more
than one-half of his penis; however, he does not have voiding
dysfunction that requires the wearing of absorbent materials,
daytime voiding interval less than one hour, or awakening to
void five or more timer pere night, or obstructed voiding.
CONCLUSION OF LAW
The criteria for the assignment of an increased rating higher
than 30 percent for the veteran’s service-connected residuals
of penile cancer have not been met. 38 U.S.C.A. §§ 1155,
5107, 7104 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.102, 4.7,
4.115, Diagnostic Code 7520 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
In an October 1984 rating action, the RO granted service
connection for the residuals of carcinoma of the penis and
assigned a 20 percent disability rating. In a May 1995
rating decision, the RO determined that the October 1984
rating action was erroneous in not granting a 30 percent
evaluation for the residuals of penile cancer. The 30
percent rating was assigned, effective from July 1, 1984.
The veteran was afforded a VA genitourinary examination in
May 1996 at which time the examiner noted the veteran’s
history of partial penectomy. The veteran denied any dysuria
or residual. He reported having nocturia 2-3 times at night,
but reported that had not changed since 1980. He denied
hematuria, dribbling, difficulty in initiating streams,
kidney disease or kidney stones. The examiner noted that the
veteran did have to modify the way he urinated in that the
urine did not come out in a stream, but rather in a spray and
the veteran had to redirect his stream using his hands.
Physical examination revealed a shortened penis without the
glans penis. The diagnostic impression was that the veteran
had squamous skin cancer of the penile glans penis in 1980
which had led to lymph node dissection of both sides and
significant disability of the right leg function requiring
him to wear a right knee brace.
The veteran testified at a personal hearing in August 1995
that when urinating he must redirect the spray with his hands
to avoid soiling his clothes. He testified that he “might
occasionally” experience some inappropriate drainage, but he
did not wear any appliance or pads. He reported that he
would urinate approximately once an hour during the morning
and two to three times during the night.
II. Analysis
The Board finds the veteran's claim for increased
compensation benefits is "well grounded" within the meaning
of 38 U.S.C.A. § 5107(a). The United States Court of
Veterans Appeals (Court) has held that, when a veteran claims
a service-connected disability has increased in severity, the
claim is well grounded. Proscelle v. Derwinski, 2 Vet.App.
629 (1992). The Court has also stated that where entitlement
to compensation has already been established and an increase
in the disability rating is at issue, the present level of
disability is of primary concern. Francisco v. Brown, 7
Vet.App. 55 (1994). The Board further finds that this matter
has been adequately developed for the purpose of appellate
review.
The veteran’s condition is currently rated as 30 percent
disabling, the maximum schedular evaluation available where
there has been removal of one-half or more of the penis.
38 C.F.R. § 4.115, Diagnostic Code 7520. Regulations also
provide that the veteran’s condition may be evaluated as
voiding dysfunction, rated as leakage, frequency, or
obstruction. A 40 percent evaluation is warranted for
leakage that requires wearing of absorbent materials which
must be changed 2 to 4 times per day. A 40 percent rating is
also for assignment for daytime voiding interval less than
one hour, or awakening to void five or more times per night.
Obstructed voiding warrants a 30 percent rating when it
requires intermittent or continuous catheterization. 38
C.F.R. § 4.115a.
The evidence of record does not show that the veteran
experiences a voiding dysfunction such that he requires
catheterization, is required to wear absorbent materials or
has daytime voiding interval between one and two hours, or
awakening to void five or more times per night. The veteran
testified that he awakens 2 to 3 times per night, but does
not wear pads or appliances. The veteran’s main complaint
centers on the unsanitary manner is which he must manually
redirect his urinary stream; however, those complaints are
not that basis for an increased rating under 38 C.F.R.
§ 4.115a, b.
Consideration has been given to the provisions of 38 C.F.R.
Parts 3 and 4, whether or not they were raised by the
appellant, as required by Schafrath v. Derwinski, 1 Vet.App.
589 (1991), and the Board has applied all the provisions of
Parts 3 and 4 that would reasonably apply in this case.
38 C.F.R. § 3.321(b)(1) provides that where the disability
picture is so exceptional or unusual that the normal
provisions of the rating schedule would not adequately
compensate the veteran for his service connected disability,
then an extraschedular evaluation will be assigned. If the
question of an extraschedular rating is raised by the record
or the veteran before the Board, the correct course of action
for the Board is to raise the issue and remand the matter for
decision in the first instance by the RO. Bagwell v. Brown,
9 Vet.App. 157, 158 (1996); Floyd v. Brown, 9 Vet.App. 88, 94
(1996).
Since it is neither shown nor asserted that the veteran’s
current disability picture is so unusual or exceptional as to
render impractical the application of the pertinent
provisions of the rating schedule in this case, the Board
finds that consideration of this matter under the provisions
of 38 C.F.R. § 3.321 is not appropriate.
ORDER
An increased rating for the service-connected residuals of
penile cancer is denied.
REMAND
The veteran’s service-connected right femoral nerve injury
residuals with thigh weakness is currently evaluated as 20
percent disabling for moderate incomplete paralysis of the
anterior crural nerve (femoral) under the provisions of
38 C.F.R. § 4.124a, Diagnostic Code 8526. An increased
rating under that Diagnostic Code would be warranted
depending on the severity of the nerve paralysis experienced.
The reports of the most recent VA examinations include the
veteran’s complaints of weakness and discomfort of the right
thigh muscle. Physical examination revealed a marked loss of
the medial group of right thigh muscles, vastus medialis.
The veteran presented to the examinations wearing a leg brace
and reported difficulty walking and inability to support his
weight. Clinical evaluations revealed diminished cold and
pinprick sensations medially in the right lower extremity.
The diagnostic impression was that the findings were
consistent with injury to the femoral nerve supplying the
medial thigh muscles.
The Board notes that the January 1996 VA examination included
the physician’s comment that the veteran had a “significant”
disability of the right leg function. In addition, the
veteran has consistently complained of pain and weakness in
the right leg.
The Board observes that the femoral nerve affects quadriceps
extension, the same function to be evaluated under criteria
used to rate damage to Muscle Groups XIII, XIV and XV.
38 C.F.R. § 4.73, Diagnostic Codes 5313, 5314, 5315. The
medical evidence appears to indicate that the veteran is
suffering a disability that has resulted in both nerve and
muscle damage; however, the VA examinations to date are not
adequate for evaluating the severity of the veteran’s
disability. Where the record before the Board is inadequate,
a remand is required. The development of facts includes a
“thorough and contemporaneous medical examination, one which
takes into account the records of prior medical treatment, so
that the evaluation of the claimed disability will be a fully
informed one.” Green v. Derwinski, 1 Vet.App. 121, 124
(1991).
In addition, any examination for musculoskeletal disability
done for rating purposes must include certain findings and
conclusions that have heretofore been overlooked in VA
examinations of record. The Court has pointed out that such
examinations must include consideration of all factors
identified in 38 C.F.R. §§ 4.40, 4.45 (1996). DeLuca v.
Brown, 8 Vet.App. 202 (1995). In particular, the
examinations ordered on remand should include medical
determinations as to whether the veteran’s right leg exhibits
pain on use, incoordination, weakness, fatigability or pain
during flare-ups. DeLuca, supra.
Therefore, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim, the
case is REMANDED to the RO for the following development:
1. The RO should take appropriate steps
to contact the veteran in order to obtain
the names and addresses of all medical
care providers who treated him for
complaints regarding his right leg
disability since 1995. After securing
the necessary release, the RO should
attempt to obtain copies of all records
from the identified treatment sources.
2. The veteran should be afforded VA
orthopedic and neurological examinations
to determine the current extent of the
residuals of the right femoral nerve
injury with thigh weakness. The claims
folder and a copy of this Remand should
be made available to the examiners for
review. All indicated studies should be
performed and all pertinent clinical
findings should be reported in detail,
including all functional impairments
identified in §§ 4.40, 4.45. See DeLuca,
supra. It is requested that the
examiners specifically describe the
extent of muscle loss experienced and the
disability related thereto, to include
whether the veteran experiences loss of
function of the right knee. In addition,
the examiners are requested to
specifically determine the extent of the
right femoral nerve paralysis, that is
whether it is complete or partial, and if
partial, the level of severity. Complete
rationale for all opinions expressed must
be provided.
3. After the development requested above
has been completed, the RO should again
review the veteran’s claim. If any
benefit sought on appeal remains denied,
the veteran and representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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